EXHIBIT 2.1
THERMO TERRA TECH
AGREEMENT OF DISSOLUTION OF PARTNERSHIP
WHEREAS, the partners identified below (the "Partners") are
parties to that certain Agreement of Partnership dated May 16,
1994 (the "Partnership Agreement"), establishing
a Massachusetts general partnership known as Thermo Terra Tech
(the "Partnership"); and
WHEREAS, the Partners wish to dissolve the Partnership;
NOW, THEREFORE, in consideration of the mutual obligations
set forth below and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Dissolution. The Partnership is hereby dissolved
pursuant to Section 8.01(a)(i) of the Partnership Agreement,
effective as of April 2, 1995.
2. Distributions of Partnership Assets.
(a) Pursuant to, and subject to the provisions of,
Section 8.02 of the Partnership Agreement, the Partnership does
hereby distribute, grant, convey, assign, transfer and deliver to
each respective Partner, in kind, all of the Partnership's right,
title and interest in and to the property, assets and benefits,
wherever located, originally transferred by such Partner to the
Partnership upon the establishment of the Partnership (with
respect to each Partner, such "Partner's Assets") pursuant to
that certain Bill of Sale and Assumption of Liabilities dated May
16, 1994 between the Partnership and such Partner (with respect
to each Partner, such "Partner's Bill of Sale"), together with
all other property, assets and benefits acquired by the
Partnership and used in the business or businesses conducted by
the Partnership with such Partner's Assets, and including,
without other limitation:
(i) All fixed assets and other tangible property,
machinery, tools, equipment, dies, patterns, blueprints,
furniture, equipment, books, records and supplies, relating
to such Partner's Assets;
(ii) All inventories relating to such Partner's Assets
including raw materials, work in process, finished goods and
packaging and shipping materials wherever located;
(iii) All customer lists, orders and inquiries, all
claims and rights of recovery or setoff against suppliers
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and vendors, and any rights under agreements and contracts,
relating to such Partner's Assets;
(iv) All inventions, patents, transferable licenses,
transferable permits and transferable franchises, copyrights
and know-how, proprietary software and computer programs,
relating to such Partner's Assets; and
(v) Any trade accounts receivable, notes receivable
and miscellaneous receivables relating to such Partner's
Assets.
(b) For purposes of this Section 2, any property,
assets and benefits acquired by the Partnership in consideration
of cash or cash equivalents that had been contributed to the
Partnership by Terra Tech shall be deemed to be Partner's Assets
of Terra Tech, and the Partnership does hereby distribute, grant,
convey, assign, transfer and deliver to Terra Tech all of the
Partnership's right, title and interest in and to any such
Partner's Assets, wherever located.
3. Warranties.
(a) The Partnership hereby warrants, covenants and
promises to each Partner that it is the lawful owner of such
Partner's respective Partner's Assets, that it has good right to
transfer the same as aforesaid, and that it will warrant and
defend the same against the lawful claims and demands of all
persons; provided, however, that no such warranty, covenant or
promise is made if and to the extent that any defect in title is
a direct or indirect result of any misrepresentations and/or
breaches of warranties of title set forth in such Partner's Bill
of Sale.
(b) THE FOREGOING TRANSFERS ARE MADE "AS IS" AND ALL
WARRANTIES OF CONDITION, MERCHANTABILITY, QUALITY OR FITNESS FOR
USE, OR ANY OTHER WARRANTY, EXPRESSED OR IMPLIED, WITH THE
EXCEPTION OF WARRANTIES OF TITLE SET FORTH HEREIN ARE HEREBY
DISCLAIMED.
(c) Notwithstanding the foregoing, to the extent that
the assignment of any contract or authorization by the
Partnership to a Partner would constitute a breach thereof, this
Agreement shall not constitute a contract to assign same. If the
Partnership shall fail to obtain the consent of any party
necessary to effect an assignment to any Partner of any such
contract or authorization requiring such consent, the Partnership
shall cooperate with such Partner in any reasonable arrangement
requested by such Partner designed to provide for such Partner
the benefit, monetary or otherwise, of any such contract or
authorization, including enforcement of any and all rights of the
Partnership against the other party thereto arising out of breach
or cancellation thereof by such other party or otherwise.
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4. Assumptions of Liabilities.
(a) Each Partner hereby assumes any and all
liabilities, commitments and obligations of the Partnership
originally transferred by such Partner to the Partnership upon
the establishment of the Partnership (with respect to each
Partner, such "Partner's Liabilities") pursuant to such Partner's
respective Partner's Bill of Sale, to the extent that such
Partner's Liabilities have not been discharged by the Partnership
prior to the date hereof, together with all other liabilities,
commitments and obligations assumed or incurred by the
Partnership in connection with the business or businesses
conducted by the Partnership with such Partner's Assets, and
agrees to perform, pay and discharge such Partner's Liabilities,
and warrants that it will indemnify and hold harmless the
Partnership and every other Partner against such Partner's
failure to do so.
(b) For purposes of this Section 4 of this Agreement,
any and all liabilities, commitments and obligations incurred or
assumed by the Partnership in connection with any business or
businesses acquired by the Partnership in consideration of cash
or cash equivalents that had been contributed to the Partnership
by Terra Tech shall be deemed to be Terra Tech's Partner's
Liabilities, and Terra Tech hereby assumes any and all such
Partner's Liabilities, together with all other liabilities,
commitments and obligations assumed or incurred by the
Partnership in connection with the business or businesses
conducted by the Partnership with the assets so acquired, and
agrees to perform, pay and discharge such Partner's Liabilities,
and warrants that it will indemnify and hold harmless the
Partnership and every other Partner against Terra Tech's failure
to do so.
5. Releases. The Partnership and each of the Partners
hereby release, hold harmless and forever discharge one another,
and their respective successors and assigns, of and from any and
all actions, causes of action, claims, demands, costs,
liabilities, losses, expenses and compensation, past, present or
future, known or unknown, accrued or unaccrued, which the
Partnership and/or any Partner ever had, now has or may have
against any of one or more of the Partners under Section 5.03 of
the Partnership Agreement.
6. Termination of the Partnership. The Partnership shall
be terminated in accordance with the provisions of Section
8.01(c) of the Partnership Agreement.
7. Successors and Assigns. Each and every provision
hereof shall be binding upon and shall inure to the benefit of
the parties and their respective successors and assigns.
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8. Entire Agreement. This Agreement constitutes the full
and complete agreement of the parties hereto with respect to the
subject matter hereof.
9. Captions. Titles or captions of sections contained in
this Agreement are inserted only as a matter of convenience and
for reference, and in no way define, limit, extend or describe
the scope of this Agreement or the intent of any provision
hereof.
10. Counterparts. This Agreement may be executed in a
number of counterparts, all of which together shall for all
purposes constitute one Agreement, binding on all of the parties
hereto notwithstanding that all such parties have not signed the
same counterpart.
11. Applicable Law. This Agreement and the rights and
obligations of the parties hereunder shall be governed by and
interpreted, construed and enforced in accordance with the laws
of the Commonwealth of Massachusetts.
12. Gender, Etc. In the case of all terms used in this
Agreement, the singular shall include the plural and the
masculine gender shall include the feminine and neuter, and vice
versa, as the context requires.
13. Creditors. None of the provisions of this Agreement
shall be for the benefit of or enforceable by any creditor of any
Partner or of the Partnership other than a Partner who is such a
creditor of the Partnership.
14. Definitions. Capitalized terms used in this Agreement
without definition shall have the respective meanings assigned to
them in the Partnership Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
on May 9, 1995, to be effective as of the 2nd day of April, 1995.
THE PARTNERSHIP: THERMO TERRA TECH
By: TERRA TECH LABS INC.
Its: General Partner
By: John P. Appleton
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John P. Appleton
Title: Attorney-in-Fact
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THE PARTNERS:
TERRA TECH LABS INC. SKINNER & SHERMAN, INC.
By: John P. Appleton By: Arvin H. Smith
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John P. Appleton Arvin H. Smith
Title: Attorney-in-Fact Title: Attorney-in-Fact
EBERLINE ANALYTICAL CORPORATION TMA/NORCAL INC.
By: Arvin H. Smith By: Arvin H. Smith
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Arvin H. Smith Arvin H. Smith
Title: Attorney-in-Fact Title: Attorney-in-Fact
NORMANDEAU ASSOCIATES INC. BETTIGOLE, ANDREWS &
CLARK INC.
By:Arvin H. Smith By: Arvin H. Smith
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Arvin H. Smith Arvin H. Smith
Title: Attorney-in-Fact Title: Attorney-in-Fact
FELLOWS, READ & ASSOCIATES INC. THERMO CONSULTING
ENGINEERS INC.
By: Arvin H. Smith By: Arvin H. Smith
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Arvin H. Smith Arvin H. Smith
Title: Attorney-in-Fact Title: Attorney-in-Fact
AA951430010